The opinion of the court was delivered by: KEECH
This case is before the court for hearing on the petition for a writ of habeas corpus, pursuant to the order of the United States Court of Appeals for the District of Columbia Circuit dated June 27, 1956.
The petitioner, James Clarence Moore, on July 16, 1955, was conditionally released, under the provisions of 18 U.S.C. §§ 4163, 4164, from Atlanta Penitentiary after serving a three to nine-year sentence for housebreaking, less credit for 1038 days' 'good time.' On December 22, 1955, the petitioner was arrested for violation of the conditions of his release, under a warrant signed by Scovel Richardson, Chairman of the United States Board of Parole, and confined in the District of Columbia Jail, to await hearing on revocation of his conditional release.
Prior to such hearing, the petitioner filed his petition for a writ of habeas corpus protesting that he was illegally confined on the grounds: (1) that he had been on conditional release, not parole; (2) that the Chairman of the United States Board of Parole had no authority to issue a warrant for arrest; (3) that he could not be imprisoned pending revocation of his conditional release; and (4) that by sending written communications to inmates of Atlanta Penitentiary he had not violated the terms of his conditional release. He acknowledged that he had been directed on several occasions by the parole officer supervising his conditional release and also by a letter from James V. Bennett, Director of the Bureau of Prisons, not to continue his attempts to communicate with such inmates. In his petition he indicated his desire that the court, not the Parole Board, determine whether he had violated his conditional release.
The respondents answered that the petitioner was lawfully confined at the District Jail pursuant to a proper warrant of arrest for violation of conditional release and, further, that it was anticipated the defendant would be accorded a hearing on the question of revocation during the week of January 16, 1956, in Washington, rather than being transferred to Atlanta or waiting for the regularly scheduled March meeting of the Board.
The hearing on revocation was held January 17, 1956, before James C. Neagles, Examiner. On January 23, 1956, the Board of Parole revoked petitioner's conditional release. On January 17, 1956, another judge of this court dismissed the petition for writ and discharged the rule to show cause, signing the formal order January 24, 1956. On appeal from this order, the Court of Appeals vacated the order and directed a full hearing.
On remand the respondents filed a supplemental return and answer to the rule to show cause, and affidavits of Robert W. Cassidy, the parole officer who supervised petitioner's conditional release, Scovel Richardson, Chairman of the United States Board of Parole, and Donald B. Laughlin, Assistant Parole Officer employed by the Federal Bureau of Prisons and assigned to the United States Penitentiary at Atlanta, with many appended exhibits, including a summary and the full transcript of the revocation hearing. The defendant was returned to the District of Columbia from Atlanta Penitentiary, and a full hearing was had before this court on July 3, 1956.
It is apparent of record that the defendant was properly confined at the time he filed his petition herein. The warrant of arrest was issued on adequate information, signed by the Chairman of the United States Board of Parole, pursuant to 18 U.S.C. § 4205 and served in accordance with the provisions of 18 U.S.C. § 4206.
Although release following the allowance of deductions for good conduct, as provided by statute, cannot be denied a prisoner, the granting of such release in the first instance is in the nature of a privilege bestowed by the Congress, and is conditioned by the statute, 18 U.S.C. § 4164, by the limitation that the prisoner shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term for which he is sentenced. Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, certiorari denied 305 U.S. 595, 59 S. Ct. 71, 83 L. Ed. 377.
In view of the Court of Appeals' order, this court has viewed the petition as if it had been filed after the Parole Board's revocation of petitioner's conditional release. This leaves for determination the questions: (1) whether there has been compliance by the Parole Board with the statutory requirement for hearing, and (2) whether the Board acted arbitrarily and capriciously in revoking petitioner's conditional release. The court may not determine de novo whether, in fact, petitioner violated his parole, United States ex rel. Jacobs v. Barc, 6 Cir., 1944, 141 F.2d 480, certiorari denied 322 U.S. 751, 64 S. Ct. 1262, 88 L. Ed. 1581; Nave v. Bell, 6 Cir., 1950, 180 F.2d 198, nor may the court pass upon the sufficiency or reliability of the information upon which the revocation was based, Rogoway v. Warden, 9 Cir., 1941, 122 F.2d 967, certiorari denied 315 U.S. 808, 62 S. Ct. 797, 86 L. Ed. 528, rehearing denied 316 U.S. 707, 62 S. Ct. 941, 86 L. Ed. 1774; Fox v. Sanford, 5 Cir., 1941, 123 F.2d 334, or substitute its judgment for that of the Parole Board, Freedman v. Looney, 10 Cir., 1954, 210 F.2d 56; Jones v. Welch, 1945, 80 U.S.App.D.C. 253, 151 F.2d 769, as these are all matters within the informed judgment and discretion of the administrative body. Zerbst v. Kidwell, 1948, 304 U.S. 359, 362, 58 S. Ct. 872, 82 L. Ed. 1399.
The only statutory requirement as to hearing, 18 U.S.C. § 4207, provides:
'A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.'
There is no requirement of formal charges or any particular kind of hearing. Counsel for petitioner conceded in open court that the hearing provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., are inapplicable to revocation hearings. Hiatt v. Compagna, 5 Cir., 1949, 178 F.2d 42, 46, affirmed 340 U.S. 880, 71 S. Ct. 192, 95 L. Ed. 639, rehearing denied 340 U.S. 907, 71 S. Ct. 277, 95 L. Ed. 656.
In construing a similar District of Columbia statute, the Court of Appeals pointed out that 'No constitutional right is involved, as parole is a matter of grace', and construed 'an opportunity to appear' before the Parole Board as 'an effective appearance,' including 'the presence of counsel if the prisoner so elects, and the receipt of testimony if he had testimony to present.' Fleming v. Tate, 1946, 81 U.S.App.D.C. 205, 206, 156 F.2d 848, 849. An effective appearance would also require that the prisoner have reasonable notice of the alleged violation or violations of parole or conditional release upon which the Board relies for the proposed revocation. If the prisoner elects to appear without counsel, he should be given a reasonable opportunity to present his side of the matter to the Board. There is no duty to appoint counsel. Fleming v. Tate, supra.
In the instant case, the hearing was held before an examiner designated by the Board, in accordance with 18 U.S.C. § 4207, and reported by a stenographer. No formal charges or other written notice of the alleged violations of conditional release was served on petitioner at any time; but, as shown by the petition for writ of habeas corpus herein, filed January 6, ten days before the revocation hearing, the petitioner, even prior to his arrest, had notice of the violations upon which the warrant was to be based. Petitioner stated therein that on December 10, 1955, he was called into the office of his parole officer, Mr. Cassidy, who informed him that he was having petitioner's conditional release revoked for 'associating with criminals, by writting (sic) to inmates in the penitentiary,' and that Cassidy particularly referred to three postcards mailed from New York City to three prisoners at Atlanta on or about October 30, 1955, signed 'Elane.' The petitioner's testimony at the revocation hearing indicates that he was fully advised as to the violations for which revocation was sought. He testified that Mr. Cassidy on August 25, 1955, discussed with ...